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NC State and Highway Patrol withhold report on trooper promotions

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N.C. State University is denying the release of its report into what went wrong with a promotions test for troopers, in part by citing a federal privacy law protecting student education records.

An NCSU spokesman said the report given to the State Highway Patrol last week, and other documents requested by The News & Observer, wouldn’t be public because they involve a graduate student who worked with the patrol on the promotions test. Two weeks ago, the patrol identified that student as Unber Ahmad, and said she had been removed from a patrol internship program for her role in “compromising the organization’s promotions process.”

Mick Kulikowski, an NCSU spokesman, said even though the student has been identified, the federal Family Educational Rights and Privacy Act (commonly referred to as FERPA) still requires the university to protect her education records.

“FERPA protects education records which include not only academic records but most, if not all, records related to the student that are maintained by the university,” he said in an email message.

He said those records include student employment records that are protected “when the employment is dependent on student status, such as in the case of a research assistant.”

Over the past 45 years FERPA has been used by colleges and universities to shield a wide array of information, including records pertaining to crimes on campus and academic fraud. Critics say universities have stretched the law beyond its intended purpose to shield records that might reflect poorly on them.

Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, said this is the first time he’s seen it used to prevent the release of information involving a student’s work with an outside public agency. He was director of the Student Press Law Center for nearly a decade before joining the Brechner Center in 2017.

He questioned whether NCSU could use FERPA to withhold the report and at least some of the other records requested.

“If there’s a record that the university is directly using to evaluate that person’s job performance then that falls under that exemption,” LoMonte said. “But that doesn’t mean that every record that you create that is related to employment is covered by FERPA when it involves an outside agency.”

Brooks Fuller, director of the North Carolina Open Government Coalition and Sunshine Center, said FERPA may cover some employment-related records, but not the report and not any communications Ahmad had received from troopers.

“A report created by a university for a matter related to public policy is not an education record under the meaning of FERPA even if it involves input from a student or student labor,” Fuller said.

Ahmad worked for NCSU’s Industrial and Organizational Psychology Program, which has helped the patrol develop and administer the promotions test for roughly 20 years. The test is used each year to identify troopers to promote. Graduate students are involved in that work.

The patrol publicly confirmed an internal investigation into the promotions test on June 28. Ahmad had been removed three days earlier, but that was not disclosed by the patrol until July 11, after the N&O had inquired about her work.

Sgt. Mike Baker, a patrol spokesman, said on Tuesday in an email the patrol could not release NCSU’s report. He said the investigation is ongoing, but he did not cite a specific law for withholding the report.

On Wednesday, he cited the state’s personnel law for not releasing the report. The law has an exemption that allows agencies to release personnel information to show they are operating with integrity.

Baker said the patrol is working to identify what communications involving Ahmad would be public record.

The patrol transferred five troopers that had been based in Wake County to other posts shortly after the start of the investigation. Baker would not say whether the troopers were suspected of any misconduct.

Kulikowski also said the report and other records regarding Ahmad can’t be released because they involve university research and personnel matters.

LoMonte and Fuller said North Carolina and many other states have exemptions to public records laws to shield research documents, but they questioned whether the report and some of the other records the N&O requested fit that definition. Fuller also disputed whether the personnel law would cover a report on a compromised promotions process.

“These seem like matters related to public safety and policing that the public has a right to see,” Fuller said. “Except individual assessments of individual officers, which are likely personnel records within the meaning of the law, I do not believe that a report on a promotions test falls within the meaning of an exempt personnel document.”

Dan Kane began working for The News & Observer in 1997. He covered local government, higher education and the state legislature before joining the investigative team in 2009.
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